Schnell v. Howitt

Citation76 P.2d 1130,158 Or. 586
PartiesSCHNELL <I>v.</I> HOWITT
Decision Date08 March 1938
CourtSupreme Court of Oregon
                  See 2 Am. Jur. 728
                  3 C.J.S., Animals, § 148
                

Appeal from Circuit Court, Multnomah County.

WILLIAM A. EKWALL, Judge Pro Tempore.

Personal injury action by William Schnell, by his guardian ad litem, Sophia Schnell, against George K. Howitt. From a judgment for plaintiff, defendant appeals.

REVERSED.

George D. La Roche and J.B. Ofner, both of Portland, for appellant.

Arthur Langguth and L.S. Dunsmore, both of Portland, for respondent.

RAND, J.

On March 14, 1935, the plaintiff, while in the employ of the defendant and at work upon defendant's premises, sustained an injury by being hooked by a cow belonging to the defendant. Plaintiff brought this action to recover for the injury and, from a judgment in his favor, the defendant has appealed.

It is alleged in the complaint that the defendant owns and operates what is known as "East Side Stables" in the city of Portland and that the plaintiff "was employed to do such work in and about said stables as may be required in the course of the day's work". The evidence shows that the injury was sustained on said premises and while plaintiff was engaged in unfastening the cow from a stall.

As grounds for the action, the plaintiff alleges that the defendant failed to warn him of the danger and also failed to provide him with a safe place in which to work. There is no allegation in the pleadings, nor was any evidence offered upon the trial, tending to show that prior to the injury the cow was vicious or had ever evidenced any dangerous propensities.

1. It is a well-established rule of law that the owner of an animal not naturally vicious, such as a cow, is not answerable for an injury done by it unless it was, in fact and to his knowledge, vicious: 2 Am. Jur., Animals, sec. 48, and authorities there cited.

In 3 C.J.S., Animals, sec. 148, it is said:

"Generally the owner of a domestic animal is under no obligation to guard against injuries which he has no reason to expect on account of some disposition of the individual animal different from the species generally if he has no notice of such disposition. Hence, if the injury has resulted from the exercise of a vicious propensity, which is not natural to the class of...

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8 cases
  • Clark v. Brings
    • United States
    • Minnesota Supreme Court
    • June 27, 1969
    ...useless.' 2 It is also true that many of the animals which have been held to be of a harmless nature, such as milch cows (Schnell v. Howitt, 158 Or. 586, 76 P.2d 1130), are obviously more economically productive and, in that narrow sense, more useful to society than are The example of the h......
  • Darnold v. Voges
    • United States
    • California Court of Appeals Court of Appeals
    • July 18, 1956
    ...v. Curtis, 78 Cal. 498, 501, 21 P. 120; Clowdis v. Fresno Flume & Irr. Co., 118 Cal. 315, 50 P. 373, 62 Am.St.Rep. 238; Schnell v. Howitt, 158 Or. 586, 76 P.2d 1130; Barnett v. Pulda, 116 N.J.L. 141, 182 A. 879. They declare that 'the O'Brien case is so factually indistinguishable from the ......
  • Darnold v. Voges
    • United States
    • California Court of Appeals Court of Appeals
    • February 29, 1956
    ...524; Finney v. Curtis, 78 Cal. 498, 501, 21 P. 120; Clowdis v. Fresno Flume & Irrigation Co., 118 Cal. 315, 50 P. 373; Schnell v. Howitt, 158 Or. 586, 76 P.2d 1130, 1131; Barnett v. Pulda, 116 N.J.L. 141, 182 A. 879. They declare that 'the O'Brien case is so factually indistinguishable from......
  • Jaco v. Baker
    • United States
    • Oregon Supreme Court
    • May 9, 1944
    ...or knowledge of the vicious propensity of the dog must be proven. Unless scienter is proven, no recovery is justified. Schnell v. Howitt, 158 Or. 586, 76 P. (2d) 1130. Taking the pleadings, the instructions as a whole, the verdict and the judgment, we hold that plaintiff's claim thereunder ......
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